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FCC levies fine against ASTCA for failure to file hearing aid compatibility status reports

fili@samoanews.com

The Federal Communications Commission has issued a $6,000 forfeiture order against the American Samoa TeleCommunications Authority for “willfully and repeatedly violating the hearing aid compatibility status report filing requirements set forth in the FCC 2003 Hearing Aid Compatibility Order.”

The forfeit order was issued Oct. 19 by the FCC’s Spectrum Enforcement Division of the Enforcement Bureau. The  2003 Hearing Aid Compatibility Order adopted several measures to enhance the ability of individuals with hearing loss to access digital wireless telecommunications.

In March 2008, the Bureau received a complaint alleging that ASTCA had failed to file the required hearing aid compatibility status reports and therefore might not be in compliance with the hearing aid compatibility requirements. The Bureau then issued ASTCA a letter of inquiry and ASTCA replied in May the same year. 

However, in November 2008 the Enforcement Division released a Notice of Apparent Liability for Forfeiture (NAL) against ASTCA concluding that “ASTCA apparently willfully  and repeatedly violated the hearing aid compatibility status report filing requirements”by failing to file seven hearing aid compatibility status reports between May 2004 and November 2007.

The Division exercised its prosecutorial discretion and proposed a $6,000 forfeiture for ASTCA’s failure to file a single hearing aid compatibility status report, which was due on November 19, 2007. The amount proposed reflects an increase above the $3,000  base forfeiture for failure to file required forms or information.

The Division also admonished ASTCA for violating other provisions of former hearing aid rules by failing to offer, by September 16, 2005, at least two handset models that met radio frequency interference regulations. On December 5, 2008, ASTCA filed a response to the NAL.

In examining ASTCA’s NAL response, “we are not persuaded by ASTCA’s legal arguments and find that a forfeiture was validly proposed against ASTCA for its continuing violation of the hearing aid compatibility status report filing requirements...,” according to the Division.

ASTCA raises a number of arguments to support its request for reduction or cancellation of the proposed forfeiture, but the Division said, “We find these arguments unpersuasive”, adding that ASTCA states that it did not knowingly fail to file its hearing aid compatibility status reports, suggesting that the violations were inadvertent and therefore not willful.

According to the Division, ASTCA argued that because of the physical distance between American Samoa and Washington D.C., “ASTCA was unfamiliar” with the hearing aid order.

“Licensees, however, are expected to know and comply with the Rules, regardless of their geographic distance from the FCC’s headquarters,” the Division said, adding that the FCC has repeatedly held that violations resulting from inadvertent error or failure to become familiar with the FCC’s requirements can be and often are willful violations.

Additionally, ASTCA’s “violations were repeated” and therefore ASTCA’s unfamiliarity with the hearing aid compatibility requirements is not a mitigating circumstance warranting cancellation or downward adjustment of the proposed forfeiture amount.

ASTCA also sought a reduction or cancellation of the proposed forfeiture based on its subsequent remedial efforts, the Division said.

 While ASTCA states that it filed the information required in its November 19, 2007, report on May 9, 2008, “it did so more than five months after the filing deadline and only in response to the initiation of our investigation,” the agency said. 

“ASTCA also challenges our assessment of the egregiousness of its violation, stating that its failure to file its hearing aid compatibility status reports only minimally impacted consumer access to information concerning the hearing aid compatibility of digital wireless handset models because such information was available on hearing aid-compatible digital wireless handset labels,” according to the agency.

“We disagree. While consumers may access information about the hearing aid compatibility of particular digital wireless handsets on the labels required by the Rules, these labels do not provide the comprehensive, consolidated information available in the hearing aid compatibility status reports,” it says.

Moreover, the Division noted that ASTCA’s failure to file its November 19, 2007 report, and the six preceding reports, also interfered with the ability of the FCC to fully monitor the deployment of hearing aid-compatible digital wireless handset models in American Samoa.

“We are therefore unpersuaded that ASTCA’s violations had a minimal impact, and decline to either reduce or cancel the proposed forfeiture on this basis,” according to the Division, which “also reject ASTCA’s contention that its history of compliance warrants reduction or cancellation of the proposed forfeiture amount.”

It also says that ASTCA did acknowledge that it failed to file seven different hearing aid compatibility status reports.

“We also decline to reduce the forfeiture based on ASTCA’s unsupported assertion that the cost of the forfeiture will be passed through to its customers, many of whom, ASTCA asserts, are in lower socioeconomic brackets,” it says. “ASTCA’s response fails to take into account, however, the cost to the hearing impaired community of its failure to comply.”

“Moreover, ASTCA does not allege that it is unable to pay the proposed forfeiture. In the absence of such a claim and the requisite supporting evidence, ASTCA has failed to justify a reduction of the forfeiture on this basis,” it says.

According to the Division, ASTCA had 15 calendar days after the date of the forfeiture order to pay the judgement and if that is not done, the case maybe referred to the U.S. Justice Department for enforcement. ASTCA can request payment under an installment plan and the request must be sent to the FCC’s chief financial officer.



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